Fairness in Division of Family Assets

Wills can expose strong emotions in families, for they raise uncomfortable issues: death, money, and how survivors were perceived by important people in their lives. If a parent's willspecifies that one son receive less than another, does it mean the parent loved that child less, had more faith in his ability to be successful, or was simply acknowledging and anticipating differences in the children's needs?

The easiest way to avoid conflicts and hurt feelings is to give an equal amount to each of the children and/or grandchildren. Equality may avoid conflicts and complaints but it does not necessarily mean fairness. Fairness requires some thought and forces you to take into account the particular circumstances of each individual, even at the risk of creating conflict.

Your children are of different ages, talents, interests, needs, and material resources. A practical approach to the division of your assets is to recognize, and perhaps compensate for, those differences. See our article on the various options for distributing your assets. Your estate plan gives you an opportunity to provide a measure of fairness that your children may not otherwise have found in their lives.

Consider the following scenarios:

Different ages: You have two children, ages 21 and 13. Should you split your estate in half, even though the 21-year old is finishing up four years of a private college education and the 13-year old has a lot farther to go?

Different Assets: Your daughter becomes a partner in an investment firm and quickly builds up $2 million in assets, while your son is a high school math teacher who earns $35,000 a year. Should you divide your estate into equal parts for your son and daughter?

Past Gifts: Five years ago you gave your now 28-year-old son $150,000 worth of stock in your business as an inducement to work with you, but you have not given your 22-year-old son a similar gift. Should you divide the assets of your estate equally?

Investments: You have given one child stock in Company A, which has tripled in value to $120,000, and you gave the other child stock in Company B, which has gone bankrupt. How should you allocate your remaining assets?

From these examples, you can see how an equal division of assets can lead to unequal results and you can see why you need to make reasoned and careful decisions as you decide how you leave your property. Fortunately, you can achieve more equitable results and a greater level of fairness among children. For example, you can offset assets, such as a business, that will be turned over to one child by cash from life insurance policies that will go to the other children.